All posts by Amy Laura Davidson

On February 22, 2016, Arbitrator Marc Greenbaum issued an injury leave award in favor of Mass Coaltion of Police and Rehoboth Police Lt. Bruce Dube. A copy of the Award is attached. Mass COPs case was presented and argued by Sandulli Grace Attorney Amy Laura Davidson.

The case involved a reoccurrence and exacerbation of a previous injury that Lt. Dube had suffered in a cruiser accident in 1990. The accident damaged one of his cranial nerves causing him to have double vision. He was able to compensate for it for many years by tilting his head or blinking. Last December, Bruce’s condition deteriorated and he was no longer able to compensate for the double vision.

Lt. Dube had 27 years of unblemished service. He rose through the ranks to Lieutenant. The medical evidence that his condition was work related was uncontroverted. Even the Town’s doctor found that to be the case. Although the Chief originally placed Bruce on IOD, he reversed that decision and deducted his sick leave back to February 2015. The Town dragged its feet causing Lt. Dube to run out of all of his accumulated sick and vacation time. He went off the payroll in early December 2015 and remained so until the Award issued.

Arbitrator Greenbaum issued his award in under two weeks. He found that the Town violated the contract by failing to place Lt. Dube on injured on duty leave. He also held that the Town violated the contract by switching Bruce’s shift assignment to the day shift while he was incapacitated resulting in a loss of @ $95/week. Arbitrator Greenbaum issued a make whole order requiring the Town to restore all the accumulated time that Bruce was forced to use, compensate him for back pay and place him on IOD status going forward.

The parties are currently engaged in discussions about the damages owed under the Award. The amount owed is in excess of $50,000. In addition, the Town has agreed to reimburse Lt Dube nearly $9,000 for the taxes that were unlawfully withheld from his pay while he was incapacitated.

On Saturday May 7th, the Boston Bar Association will be holding its 43rd Annual Workshop for Public Sector Labor Relations Specialists at Langdell Hall, Harvard Law School. The program is designed to familiarize lay people and attorneys who specialize in labor relations with current trends in collective bargaining and other issues affecting public employees. This year’s program features a review of significant labor law decisions issued in the past year followed by a panel of representatives from the Department of Labor Relations and the Joint Labor Management Committee who will review recent developments in their agencies. A second panel addresses the perils and pitfalls of workplace investigations including Weingarten and Fifth Amendment Rights. The conference is co-chaired by Amy Laura Davidson of Sandulli Grace, P. C., Brian Magner of Deutsch, Williams, Brooks, DeRensis & Holland, P. C., and Suffolk University Professor of Law Marc Greenbaum.

An evenly divided Supreme Court upheld a ruling from the Ninth Circuit Court of Appeals ruling supporting the right of public sector unions to collect fair share fees from employees they represent who are not members of the union. Friedrichs v. California Teachers Association. The result leaves intact a near 40 year old precedent in Abood v. Detroit Board of Education. Abood held that the First Amendment only applies to forced contributions to the union’s political activities. Public sector unions are the exclusive representative and are bound by a duty of fair representation to all bargaining unit members without regard to their union membership. Accordingly, the Court in Abood held that non-members should be required to pay their fair share of the costs of negotiating and administering the contract on their behalf.

Conservative antiunion organizations have been trying to get the Court to overturn Abood since it issued in 1977, whittling down it principles by imposing increasing burdens on unions seeking to collect fair share fees from non-members. When Friedrichs was argued on January 11th the Court seemed poised to overrule precedent. The conservative Justices expressed skepticism about virtually all of the major arguments proffered in support of fair share fees. It seemed almost certain that the high court would rule 5-4 that fair share fees are unconstitutional. But with Justice Scalia’s death there were no longer five justices to do so.

The result of the ruling is a victory for unions. But the decision was a one sentence opinion affirming the 9th Circuit “by an equally divided Court.” It does not set precedent at the Supreme Court level. The next appointment to the Court will have considerable power over this critical issue which undoubtedly will be raised again.

The Affordable Care Act (ACA) (a/k/a “Obama Care”) contains a provision that would impose a 40% non-deductible tax on higher cost health plans. The tax was scheduled to go into effect in 2018 on plans whose total annual cost exceeds $10,200 for individual and $27,500 for family coverage. Insurances carriers would be responsible for paying the tax but the burden ultimately would fall on employers and individuals with high cost plans. The Kaiser Foundation predicts that by 2018 26% of employers would be assessed the Cadillac Tax on at least one of their health plans if plan design remains the same. This is why many employers have indicated a reluctance to agree to any collective bargaining agreement beyond 2018.

In December, the U.S. House of Representatives released a tax bill entitled “Protecting Americans from Tax Hikes Act of 2015.” The bill was ultimately passed by Congress and signed into law by the President. It delays implementation of the Cadillac Tax until 2020. Analysts speculate whether the tax will ultimately be repealed before it goes into effect.

Accordingly, employers may no longer rely on the Cadillac Tax to avoid negotiating agreements that extend beyond 2018. It is likely that they will continue to be reluctant to any agreements extending beyond 2020 when the tax currently is due to take effect.

Menards, a massive home improvement chain store, has an employment agreement for managers which imposes a substantial pay cut if the workers under their supervision organize a union. A section in the employment agreement titled “Union Activity” provides that a manager’s income “shall be automatically reduced by sixty percent (60%)” of what it would have been if any union is recognized in the manager’s operation. The manager’s pay is likewise reduced by sixty percent (60%) if a union files a petition and wins an election.

The clause providing that managers are to be punished if a union succeeds appears in the employment agreement that all managers must sign as a condition of employment. One employee stated that “The mere mention of the word “union” is a workplace taboo.” Menards, funded and headquartered in Eau Claire, Wisconsin has more than 280 stores in fourteen states according to its website. The company’s owner, John Menard Jr. secretly funneled more than 1.5 million to a political advocacy group to support Wisconsin Governor Scott Walker.

Carin Clauss, an emeritus professor of law at University of Wisconsin-Madison believes the company might be vulnerable if a complaint is filed with the NLRB. The National Labor Relations Act prohibits employers from interfering with, restraining or coercing employees in the exercise of their rights to join a union. In Clauss’ opinion “You interfere with employees by threatening a third party.” Clauss suggested that an agreement that threatens managers with consequences if they don’t do something to interfere with employees organizing rights could be contrary to public policy and thereby void and unenforceable.

Stephanie Bloomingdale, Secretary-Treasurer of Wisconsin AFL-CIO said: “Shame on Menards. How are working people supposed to get ahead in this economy and work for a strong America when billionaires like John Menard are rigging the deck before working people even have a chance?”

National Right to Work Foundation (NRTW), a right wing think tank funded by large corporations, is on a mission to obliterate unions and collective bargaining in Massachusetts. It recently filed unfair labor practice charges against various teachers unions claiming that agency fee and the principle of exclusive representation are unconstitutional under the First Amendment. Emboldened by the recent Supreme Court decision in Harris v. Quinn, NRTW argues that Continue reading →

On August 7, 2013 the Department of Labor Relations (DLR) issued a decision finding that the Captain in the Hudson Police Department ought to be included in a new bargaining unit of superior officers recently organized by Mass COP.

Up until December 2012, the sergeants, lieutenants and the captain in Hudson were not organized as a union. Mass COP gathered authorization cards and filed a petition for a Written Majority Authorization at the DLR. Mass COP’s petition included all sergeants, lieutenants and the captain. The petition was approved by the DLR on December 10, 2012. The Town challenged the inclusion of the captain in the bargaining unit. Accordingly, the issue went to hearing before the DLR Board Chair Marjone F. Wittner, Esq.

The Town claimed that the captain was a “managerial” employee who was excluded from bargaining under G.L.c. 150E. In order to establish that the captain is managerial, the Town had to demonstrate that he (1) participated in a substantial degree in formulating policy; or (2) assists in a substantial degree in collective bargaining on behalf of the Town; or (3) has substantial responsibility in the administration of the collective bargaining agreement. The Town failed to establish any of the above elements.

Board Chair Wittner determined that the captain had no role in collective bargaining or in the grievance procedure. The lieutenants participate in the hiring process with the captain. According, there is no distinction between the captain and other members of the bargaining unit.

Wittner also held that the captain did not prepare or formulate policy. In fact, a lieutenant worked with the chief to formulate and update departmental rules and regulations.

Finally, Wittner determined that the captain did not have substantial responsibility in the administrative of the collective bargaining agreement. Since the captain did not meet any of the criteria to be considered a managerial employee, he was included in the unit of sergeants and lieutenants.

On November 18, 2011 Governor Deval Patrick signed Chapter 176 of the Acts of 2011, “An Act Providing for Pension Reform and Benefit Modernization.” This is the third pension reform measure passed in the last three years, and significantly changes the benefit structure for all newly hired Massachusetts public employees. In addition, the law increases benefits for certain retired members and survivors. The law also changes certain rules affecting current employees. Below is a summary of the significant modifications under the new law.

Changes Affecting Current Active Public Employees

Anti-Salary Spiking: The new law limits the annual increase in pensionable earnings Individuals who retire on or after 4/2/2012. Increases of more than 10% in salary will not be included in calculating the average pensionable earnings over the previous two year prior to retirement. This provision does not apply to bona fide job changes, payments for additional services that are otherwise eligible for inclusion, and other exempted payments.

Buyback Increase: Interest charged on buybacks and certain other service purchases increases if the employee does not make the payment within the first year of membership or within one year from 4/2/2012.

Changes Affecting Current Retirees:

Cost of Living Increases: Future COLA increases for retirees will be based on the first $13,000 instead of $12,000.

Minimum Pension Benefit: Effective 4/2/2012, the minimum pension for members who retired with at least 25 years of creditable service is increased from $10,000/year to $15,000/year.

Surviving Spouse: Effective 4/2/2012, the minimum benefit paid to the surviving spouse of a member who dies while in service increases from $250/month to $500/month.

Post-Retirement Earnings: Effective 4/2/2012, members retired for at least one year may earn an additional $15,000/year in post-retirement earnings.

Changes Affecting New Public Employees Hired on or after April 2, 2012:[i]

Minimum Retirement Age: The minimum retirement age is raised from 55 to 60 for Groups 1 and 2

Group 4 Retirement Age: The minimum retirement is raised from 45 to 50 for Group 4

Age Factors: The new law reduces the age factors in the retirement formula.

Average Salary for Calculation of Pension Benefit: The salary average period used in the retirement benefit calculation formula is lengthened from 3 years to 5 years.

Contribution Rate: Reduces the contribution rate by 3% (e.g., from 11% to 8%) once a member has 30 years of creditable service.

[i] These changes also affect employees who re-enroll in the retirement system (after taking a refund) after April 2, 2012

On November 22nd, Governor Patrick signed the Evergreen “Fix” bill into law. The bill was passed as an emergency act so it immediately goes into effect. Accordingly, municipal employers are bound to the terms of collective bargaining agreements with an evergreen clause until a new contract is negotiated. This is now the law, even if an evergreen clause extends a collective bargaining agreement beyond three years.

Last fall, the state Supreme Judicial Court overturned 30 years of history and held that “evergreen clauses” – clauses that extend collective bargaining agreements until a new contract is negotiated – were unlawful and unenforceable if the clause operated to extend a collective bargaining agreement beyond three years. This wreeked havoc in some communities because employers took advantage of the ruling by refusing to arbitrate grievances after a three- year contract expired. In addition, some employers took the position that they were not bound by any of the terms of the contract after three years, despite the fact that the employer had agreed to an evergreen provision.

This problem was corrected by the legislature on November 17thin House 3789-11. As a result of diligent efforts, persistence and lobbying by a broad coalition of public sector unions over the past year, the legislature enacted a bill that reverses the SJC ruling — reaffirming that evergreen clauses are enforceable even if they operate to extend the contract beyond three years. In addition, and again due to the extraordinary efforts of the labor coalition, the legislation contains a retroactivity provision. Section 2 of the new law restores evergreen clauses to any collective bargaining agreement that contained an evergreen provision and had expired after three years under the SJC decision. Evergreen clauses in such agreements are resurrected and enforceable going forward – even as to matters that arose prior to this legislation. So, if you are under a three year contract with an evergreen clause that had expired under the SJC ruling, the contract has been restored and is enforceable until a new contract is negotiated.

There is a narrow exception the retroactivity provision. The law does not apply are “specific matters” that “were pending or adjudicated in a court of competent jurisdiction” at the time that law was passed. There will undoubtedly be litigation about which cases fall under that exception. But the vast majority of matters are back under the umbrella of evergreen clauses. This bill is now awaiting the Governor’s signature.